Delhi District Court
Syed Sajid Ali vs State (Through Cbi) on 7 November, 2017
IN THE COURT OF Dr. KAMINI LAU: SPECIAL JUDGE
(P.C. ACT) CBI01 (CENTRAL):TIS HAZARI COURTS: DELHI
Criminal Revision No. 05/2015
Syed Sajid Ali
S/o Late Syed Mahmud Ali
R/o 200 HIG, Arunodaya Aptts.
FBlock, Vikaspuri, New Delhi18.
................ Revisionist
VERSUS
State (through CBI)
CGO Complex Lodhi Colony.
.............. Respondent
Date of Institution : 13.05.2015
Judgment Reserved on : 02.11.2017
Judgment Pronounced on : 07.11.2017
JUDGMENT:
(1) This revision petition has been filed against the impugned order dated 13.10.2014 passed by the Ld. Trial Court thereby framing the charge against the revisionist Syed Sajid Ali. (2) The present revision petition is pending before this court since July, 2015 and was being repeatedly adjourned in view of the information given to this court that the coaccused / Krishna Murari Bangar (A2) has moved to Delhi High Court for quashing of the charge sheet vide Crl. M. C. No. 781/2015 wherein the next date is now fixed as 10.01.2018. I note, there is no stay of proceedings before this court and the present FIR having been filed in the year 2011, the present case is on the priority of the Ld. Trial Court being a case which Sayed Sajid Ali vs. State (through CBI) (Crl. Revision No. 05/2016) Page No. 1 of 30 is more than six years old. Hence, given these circumstances no purpose would be served by keeping the file pending as much as the petition filed by the coaccused before Delhi High Court does not come in the way of the present case, the grounds raised by the coaccused being totally different. I, therefore, proceed to decide the same. (3) The brief facts of the case are that the Hon'ble High Court of Delhi vide its order dated 17.03.2004 passed in CWP No. 5976/2003 filed by one Sh. Chandreshar Prasad, directed the CBI to carry out verification in respect of caste certificate submitted by the persons, who secured employment against the Scheduled Tribes category and to take necessary action in accordance with law. Pursuant to said directions, CBI conducted a verification and thereafter a case bearing RC No. 6 (S) / 2010, SCUI/CBI/SC1/New Delhi was registered in SC1 branch on 24.04.2010 under Section 120B read with 420/465/467/468/471 IPC against the accused Krishna Murari Bangar coaccused in the present case and investigation of above mentioned RC was entrusted to accused S. S. Ali the then SDY. S. P. CBI / SC1/ND who is the revisionist before this court. After conducting investigation, the accused S. S. Ali who was the IO of RC No. 6 (S) / 2010, SCU I/CBI/SC1/New Delhi, submitted final report1 on 25.08.2010 and therein concluded that the allegations against accused Krishna Murari Bangar about getting employment in Government department on the basis of false and forged ST certificate, could not be substantiated and comes to the conclusion that he belong to 'Halba' caste which comes under ST category in the State of Madhya Pradesh and further Sayed Sajid Ali vs. State (through CBI) (Crl. Revision No. 05/2016) Page No. 2 of 30 recommended that the case may be closed. The Supervisory officer of the case being not satisfied with the investigation conducted by accused S. S. Ali, directed him to conduct further investigation in order to ascertain real and actual caste of accused K. M. Bangar. He was also directed to collect land revenue, school / university record birth and death record of family of the accused besides reconstructing his family tree. After conducting further investigation, accused S. S. Ali again submitted supplementary final report (SFRI) on 06.10.2010 and again recommended closure of the case against accused K. M. Bangar on the ground that he belongs to 'Halba' Caste which comes under S. T. Category. The supervisory officer again directed him to conduct further investigation in the manner stated above but the accused S. S. Ali in his second SFRI dated 08.11.2010 again recommended closure of the case against the accused Krishna Murari Bangar on the ground that there is no record or information in the university about the caste of Krishna Murari Bangar and accused belongs to 'Halba' Caste which belongs to ST category.
(4) Being unsatisfied with the investigation, the Supervisory officer removed S. S. Ali from the investigations and directed Inspector Vishal to conduct further investigation and also to verify the investigations conducted by the accused S. S. Ali while Sh. S. K. Rathi the then Dy. S.P. was deputed to monitor the further investigation. It was then that Inspector Vishal found that accused S. S. Ali did not conduct the investigation in a fair and proper manner and intentionally conducted the investigation in such a manner so as to Sayed Sajid Ali vs. State (through CBI) (Crl. Revision No. 05/2016) Page No. 3 of 30 protect accused Krishna Murari Bangar from prosecution in RC No. 6 (S) / 2010, SCUI/CBI/SC1/New Delhi. Inspector Vishal thereafter gave his complaint dated 12.09.2011 against accused S. S. Ali to S. P. ACI branch, CBI, New Delhi and on his complaint the present RC No. 8/2011 under Section 217/218 IPC was registered and thereafter investigation was conducted by the CBI. (5) The investigation of the present case reveals that the accused S. S. Ali (A1) and accused Krishna Murari Bangar (A2) entered into a criminal conspiracy with the object to save Krishan Murari Bangar (A2) from legal punishment. As per the allegations, in pursuance of aforesaid conspiracy, S. S. Ali (revisionist before this court) had visited the house of Krishan Murari Bangar (A2) at Indore on 25.05.2010, 28.06.2010 and 29.06.2010 on the pretext of examining and collection the specimen handwriting of the family members whereas same were not required for the purpose of investigation. Further, it is alleged that both the accused persons also stayed together in Room No. 108 at Hotel Devyog, Sagar from 30.06.2010 to 02.07.2010 and during this visit, S. S. Ali (A1) recorded misleading / false statement of some witnesses, the presence of whom was secured by Krishna Murari Bangar (A2), who also remained present during their examination. Thereafter, the accused persons checked out from the hotel together at about 3:30 p.m. on 2.7.2010 and thereafter, reached Bhopal and checked in Hotel Raj Hans, Bhopal at about 9:30 p.m. and stayed in room no. 106 and 107 for a night.
Sayed Sajid Ali vs. State (through CBI) (Crl. Revision No. 05/2016) Page No. 4 of 30 (6) It is also alleged that pursuant to the aforesaid conspiracy, accused S. S. Ali deliberately recorded false statements of the officials of Collectorate / Tribal Welfare Department, Sagar and Bhopal and both the accused persons again stayed together in Hotel Devyog, Sagar from 22.09.2010 to 25.09.2010 and during the stay S. S. Ali recorded false and misleading statements of the witnesses. It is also alleged by the prosecution that in pursuant to the conspiracy, accused S. S. Ali manipulated the entry in tax assessment register and got the caste 'Halba' inserted against the name of Baldev S/o Sunke in the tax assessment register pertaining to the year 200809 to 201213, maintained in the office of Purbiou Tori Ward, Nagar Palika Nigam, Sagar and further in order to avoid the chance revelation of the forced insertion of word 'Halba' in the said register the accused S. S. Ali obtained handwritten copies of the entries instead of obtaining the original or certified copies thereof. It is also case of prosecution that accused K. M. Bangar belong to Koshti caste which is notified as OBC in the State of Madhya Pradesh and he got the caste certificate issued in his favour by misrepresenting himself to be a person of ST category.
(7) It is also case of the prosecution that CBI filed the closure report in RC No. 6 (S)/10 on technical ground in view of the judgment passed by Hon'ble Supreme Court of India in Civil Appeal no. 2294/86, titled as 'State of Maharashtra vs. Milind' and on the basis of DOPT' office memo no. 36011/2/2010Estt. (Res.) dated 10.08.2011 and General Administration Department order no. 721 dated Sayed Sajid Ali vs. State (through CBI) (Crl. Revision No. 05/2016) Page No. 5 of 30 07.03.2011 of Government of Madhya Pradesh.
(8) It is submitted that the accused S. S. Ali did not conduct investigation in proper manner and intentionally conducted investigation is such a manner so as to protect the accused Krishna Murari Bangar by recording statements of witnesses in a misleading and distorted manner and by willfully collecting manipulated documents and in view of the same the competent authority had granted sanction for prosecution under Section 197 Cr.PC for launching prosecution against accused S. S. Ali despite the stand of the CBI that no prosecution sanction was required with respect to A2 as his acts were not related to his official capacity.
(9) The perusal of the Trial Court record confirms that the Ld. Trial Court had after hearing detailed arguments on charge, directed framing of charge against the accused including the present revisionist S. S. Ali under Section 120B read with Section 217 & 218 IPC and the revisionist / accused S. S. Ali was also charged for substantive offence under Section 217 and 218 IPC which order of the Ld. Trial Court has now been assailed by the revisionist S. S. Ali.
(10) According to the Revisionist, the contents of the complaint and the charge sheet prima facie discloses no case against him and the Ld. Trial Court has not understood the factual position and passed the impugned order in routine. It is further averred that the Ld. Trial Court has failed to appreciate that the prosecution has failed to prove that the original caste certificate is false and fabricated and unless it is proved that the revisionist cannot be held liable for faulty investigation with malafide intention on his part. It is also averred that even if it Sayed Sajid Ali vs. State (through CBI) (Crl. Revision No. 05/2016) Page No. 6 of 30 presumed that as per prosecution theory the coaccused belong to Kosthi community which belongs to OBC category in Madhya Pradesh, an attempt was made by the revisionist to project that the coaccused belongs to Halba caste which come under the ST category. It is averred that the Hon'ble Apex Court has categorically held that "admissions and appointments of the persons of Halba Koshti / Koshti / Halba Caste that have become final on or before 28.11.2000 shall remain unaffected, however, they shall not get any benefit of reservation after that date" and hence the revisionist was not in a position to save the coaccused in any manner because the Hon'ble Supreme Court had already settled the issue and any disregard to the decision of Hon'ble Supreme Court could attract contempt proceedings against the revisionist. It is further averred that the Ld. Trial Court has failed to appreciate that in the earlier FIR / RC No. 6 (S) / 2010 under Section 420/468/467/471 IPC (against the accused no. 2) of the present case in which the revisionist was also one of the investigating officer and had recommended closure of the case. Further, the complainant of the present RC was also the IO of the earlier RC and had recommended and has filed closure report before the Ld. CMM, Tis Hazari, which was also accepted by the Ld. MM courts citing the Apex Court Order hence when one issue has been settled the doctrine of the issue estoppel i.e. resjudicata in civil proceedings, is clearly applicable and the law with respect has been settled. According to the revisionist, the malafide intentions of the CBI can be seen from the facts that they filed a closure report in the earlier RC and subsequently lodged a fresh RC Sayed Sajid Ali vs. State (through CBI) (Crl. Revision No. 05/2016) Page No. 7 of 30 under Section 217/218 read with 120 B IPC. It is pleaded that the Ld. Trial Court has failed to appreciate this material aspect resulting into miscarriage of justice since the revisionist was not in a position to give any undue favour to coaccused in the light of the above judgment of the Hon'ble Supreme Court. It is further averred that the Ld. Trial Court has failed to appreciate that the prosecution has failed to take sanction against the coaccused i.e. K. M. Bangar and cognizance / further proceedings against him was bad in law and that in the departmental proceedings for the same charges the coaccused has been exonerated. It is further averred that Ld. Trial Court has failed to appreciate that the RTI documents obtained by the revisionist can be considered at the stage of charge as per various judgments of the Hon'ble Supreme Court and High Court and even after vide the closure recommended by the revisionist was not binding upon the supervisory officers and that subsequently closure of the case only goes to buttress the case of the revisionist. It is further submitted that the final report of the revisionist was legally scrutinized by the then DLA Sh. Virender Kumar who had also recommended closure of the case on 01.09.2010. It is submitted that the then Superintendent of Police Sh. P. L. Meena, Senior S. P. Sh. M. K. Bhat, DIG and Joint Director had also recommended closure of the case investigated by the revisionist and even various officials of CBI executive and legal had disproved legal proceedings against the revisionist. It is also pointed out that the Ld. Trial Court had failed to appreciate that the revisionist had stayed in the separate room and hotel and had paid the expenses differently and that the prosecution has utterly failed in its story. It is further pleaded that Sayed Sajid Ali vs. State (through CBI) (Crl. Revision No. 05/2016) Page No. 8 of 30 Ld. Trial Court has failed to appreciate that to constitute conspiracy the unlawful agreement is a sinequanon for constituting a offence under IPC and not an accomplishment and mere knowledge, even discussion of the plan would not perse constitute conspiracy. It is further pleaded that Ld. Trial Court has failed to appreciate that in the present case unless and until the prosecution proves that the Scheduled Tribe Caste Certificate obtained by the accused is forged and hence non consideration of this material aspects has resulted into miscarriage of justice. It is further submitted that Ld. Trial Court has failed to appreciate that the documents collected by the revisionist clearly shows that the prosecution speaking white lie because the tax assessment register is duly attested by the concerned department. Also that the Ld. Trial Court had failed to appreciate that the deputy commissioner Sagar while these letters dated 27.10.2010 (D65) has mentioned as H. No. 50/37 is entered in the name of Sh. Baldev S/o Sunke, Kosthi (Halba) and the same house with new H No. 70 is entered in the name of Sh. Baldev S/o Sh. Sunke Halba (Kosthi) (D65), and therefore, the question of any manipulation contrary to what has been already recorded in the register was beyond comprehension. (11) The revisionist has in support of his case placed reliance upon the following judgments / documents:
➢ "Rupa Ashok Hurra Vs. Ashok Hurra & Anr." AIR 2002 SC 1771.
➢ "State of Maharashtra Vs. Milind" Civil Appeal No. 2294/86 decided on 28.11.2000.
Sayed Sajid Ali vs. State (through CBI) (Crl. Revision No. 05/2016) Page No. 9 of 30 ➢ "Punjab National Bank Vs. Vilas & Ors., Civil Appeal No. 1547/2007.
➢ DOP&T Office Memorandum No. 36011/2/2010Estt.
(RES) dated 10.08.2010 issued in terms of the judgment of Hon'ble Apex Court.
➢ Notification of Madhya Pradesh Government No. F 721/2011/Aa.Pir/Eik dated 07.03.2011 thereby implementing the judgment of Hon'ble Apex Court ➢ M. C. Mehta vs. Union of India 2007 (1) SCC, 110.
➢ K. R. Purushothaman vs. State of Kerala AIR 2006 SC 35.
(12) The Ld. Public Prosecutor, CBI on the other hand has submitted that there is no illegality or irregularity in the impugned order of Ld. Trial Court as there is sufficient material on record for framing the charge against the revisionist / accused no. 1 S. S. Ali who during the course of investigation had entered into criminal conspiracy with coaccused Krishan Murari Bangar (A2) in order to save him from legal punishment. It is further submitted that the revisionist S. S. Ali did not investigate the case RC 6 (S) / 2010SC1 properly and recommended closure of the said case on the ground that coaccused belonged to Halba Caste which comes under OBC category in the State of Madhay Pradesh. It is also submitted that pursuant to the criminal conspiracy with the coaccused Krishan Murari Bangar, the revisionist S. S. Ali did not investigate the case disobeying directions of law with Sayed Sajid Ali vs. State (through CBI) (Crl. Revision No. 05/2016) Page No. 10 of 30 intent to save Accused No. 2 and has also recorded the incorrect / misleading statements of the witnesses and collected manipulated records in favour of coaccused Krishan Murari Bangar knowingly with intention to protect him from prosecution. Ld. PP further pointed out that the prima facie allegations and the material on record are sufficient for framing the charge against the revisionist S. S. Ali. It is further pointed out by the Ld. Public Prosecutor, CBI that the Revisionist / Accused No. 1 Sayed Sajid Ali was also involved in a case of Disproportionate Assets (DA) bearing RC No. 2 (A) / 2000 ACUIV titled as "CBI vs. Sayed Sajid Ali" wherein he has been convicted. (13) I have considered the rival contentions and also perused the Trial Court record, and the impugned order. Before coming to the merits of the revision petition, I may observe that in so far as the aspect of charge is concerned, the law in this regard is very clear. (14) The Hon'ble Supreme Court of India in the case of R.S. Nayak Vs. A.R. Antulay reported in AIR (1986) 2045 has observed after considering the provisions of Sections 227, 239and 245 of the Code broadly speaking the central standard was laid that in case trial court was satisfied that primafacie case was made out, charge has to be framed. It has been held as under:
"....... The truth, veracity and effect of the evidence which the prosecution proposed to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally, is not exactly to be applied. At this stage, even a very strong suspicion founded upon the materials before the Magistrate which leads him to form a presumptive opinion as to existence of factual Sayed Sajid Ali vs. State (through CBI) (Crl. Revision No. 05/2016) Page No. 11 of 30 ingredients constituting the offence alleged may justify the framing of charge against the accused in respect of the commission of that offence....."
(15) In the case of B.N. Rao Vs. State reported in 1997 JCC 359 it has been specifically held that at the stage of framing of charge the evidence has not been examined minutely and the charge can be framed even if there is suspicion. Further, in the case of Mathura Dass & Ors. Vs. State reported in DCLR 2003 (1) Delhi 694 it has been held that:
".........the existence of primafacie case may be found even on the basis of strong suspicion against an accused....... The assessment, evaluation and weighing of the prosecution evidence is a criminal case at the final stage is on entirely different footing than it is at the stage of framing of charge........
At the final stage, if two views are possible, one which favours accused has to be accepted unlike at the stage of framing of charges, where the view favourable to prosecution has to be accepted......."
(16) The Hon'ble Supreme Court in the case of Union of India Vs. Prafulla reported as 1979 SC 366 AIR held that:
"............ At the time of framing of charges, the court has power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against accused has been made out........."
(17) Further, in the same judgment the Hon'ble High Court has observed that:
".........When the material placed before the Court Sayed Sajid Ali vs. State (through CBI) (Crl. Revision No. 05/2016) Page No. 12 of 30 discloses great suspicion against the accused, the Court will be justified in framing charge. If two views are equally possible and the evidence produced gives rise to some suspicion but not grave suspicion against the accused, the judge will be fully within his right to discharge the accused.........."
(18) It was also observed that:
".........At the time of framing of charge, the Court cannot act merely as a post office or a mouthpiece of the prosecution but is to consider the broad probabilities of the case, the total aspect of the evidence and the documents produced before the Court and any basic infirmities in the case and so on........"
(19) However, a word of caution was added in this judgment that the judge should not make a roving inquiry into the pros and cons of the matter and weigh the evidence is if he was conducting a trial. (20) Again in the case of State of Maharashtra & ors. Vs. Som Nath Thapa & Ors, reported in 1996 (4) SCC 659 the three Judges Bench of the Hon'ble Supreme Court has observed that:
".......If on the basis of materials on record, a Court comes to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently if the Court were to think that the accused might have committed the offence, it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot Sayed Sajid Ali vs. State (through CBI) (Crl. Revision No. 05/2016) Page No. 13 of 30 be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage........" (Para 32).
(21) Later in the case of State Vs. S. Bangarappa reported in 2001 (1) CC Cases SC 1 the Hon'ble Supreme Court reiterated that:
"........ Time and again this Court has pointed out that at the stage of framing of charge, the Court should not enter upon a process of evaluating the evidence by deciding its worthy or credibility. The limited exercise during that stage is to find out whether the materials offered by the prosecution to be adduced as evidence are sufficient for the Court to proceed further ........."
(22) Again in the year 2001 the Hon'ble Supreme Court in the case of Kanti Bhadra Shah Vs. State of West Bengal reported in AIR 2000 SC 522, 2000 (1) ALD Cri 421 had observed that :
"......... If trial Court decides to frame charge there is no legal requirement that the trial Court should pass an order specifying the reasons as to why it opts to do so. Framing of charge itself is prima facie order that the trial judge has formed the opinion after considering the report and the documents and after hearing both decides that there is ground for presuming that the accused has committed the offence. It was held that a magistrate is required to record his reasons for discharging the accused but there is no such requirement if he forms the opinion that there is ground for presuming that accused had committed offence. In such a situation the magistrate is only required to frame a charge in writing against the accused."
Sayed Sajid Ali vs. State (through CBI) (Crl. Revision No. 05/2016) Page No. 14 of 30 (23) Also in Para 12 the Hon'ble Court had observed that:
"........ There is no legal requirement that the trial Court should write an order showing the reasons for framing of charge, why should the already burdened trial Courts be further burdened with such an extra work. Time has reached to adopt all possible measures to expedite the Court procedures and to chalk out measures to avert all roadblocks causing avoidable delays. If a magistrate is to write detailed orders at different stage merely because the counsel would address arguments at all stage, the snail pace progress of proceedings in trial Court would further be slowed down...."
(24) The Hon'ble Supreme Court again in the case of State of Orissa Vs. Debendra Nath Padhi reported as 2003 II AD (Crl) S.C. 69 observed that:
".......... If after doing so the Court comes to the conclusion that there is ground for presuming that the accused has committed an offence, then the Court shall frame charge under Section 228 of the Code, otherwise it shall discharge accused under Section 227 of the Code......."
(25) A similar view was taken by the Hon'ble High Court in the case of Subhadra Vs. State reported as 1996 JCC 665 that:
".......... At the stage of framing of charge, the Court has not to apply the same standard of test, which is applied at the time of judgment and recording finding of guilt or otherwise. At the stage, the Court has to see whether there is ground for presuming that the accused has committed the offence....."
Sayed Sajid Ali vs. State (through CBI) (Crl. Revision No. 05/2016) Page No. 15 of 30 (26) Also in the case of Ms. Soma Chakravarty Vs. State (Through CBI) reported in 2006 (1) JCC 152 (DHC) it has been held that:
".... It is settled law that at the time of framing of charge, the Court is not required to make a roving enquiry into the pros and cons of the matter and weigh evidence as if it is conducting a trial. Court is not required to make appraisal of evidence meticulously at this stage and there the material placed before the Court discloses grave suspicion against the accused which has not been property explained and indicate the involvement of the accused then it is sufficient to frame the charge......"
(27) Also in the case of Dilawar Balu Kurane Vs. State of Maharastra reported in JT 2002 (1) SC 6 it has been held that ".........It is a settled preposition of law that the judge while considering the question of framing of charge in the said Section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a primafacie case against the accused has been made out, where the material placed before the court disclose grave suspension of the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial by and large......
While during the trial if two views are equally possible and the judge is satisfied that the evidence produced before him wile giving rise to such suspicion but not grave suspicion against the accused he will be fully justified to discharge the accused ........."
(28) The Hon'ble Supreme Court had also in the case of State of Sayed Sajid Ali vs. State (through CBI) (Crl. Revision No. 05/2016) Page No. 16 of 30 Karnataka Vs L. Muniswamy reported in AIR 1977 SC 1489 held that:
"........At the stage of framing of charge the court has to apply its mind to the question whether or not there is any ground for presuming the commission of the offence by the accused...."
(29) It was held that since the framing of charge affected a person's liberty substantially, hence need for proper consideration of material warranting such order was emphasized.
(30) Further, in the case of L.K. Advani Vs. CBI reported in 1997 Crl. L. J. 2559 it has been held that:
"............ Charge can be framed by the court against the accused if the material placed before it raises a strong suspicion that the accused has committed an offence. In other words, the court would be justified in framing the charges against the accused if the prosecution has sown the seed in the form of the incriminating material which has got the potential to develop itself into a fullfledged tree of conviction later on.........".
(31) While dealing with the scope of the provisions of Section 227 and 228 of Code of Criminal Procedure, Hon'ble Justice S.K. Mahajan in the case of Surender Kumar Vs. State reported in 1997 JCC 45 Delhi observed as under:
"...... While Section 227 required the Court to discharge an accused if upon consideration of the case and documents submitted therewith and after hearing submissions of the accused and the prosecution in that behalf, the Judge considers that there was no sufficient ground for proceeding against Sayed Sajid Ali vs. State (through CBI) (Crl. Revision No. 05/2016) Page No. 17 of 30 the accused. Section 228 states that if after such consideration and hearing as mentioned under Section 227, the Judge is of the opinion that there were grounds for assuming that the accused had committed an offence, he may frame charges against the accused. Reading of the two provisions together makes it clear that at the beginning and at the initial stage of trial, the Court is not required to meticulously judge the truth, veracity and effect of evidence which the Prosecutor proposes to adduce nor any weither is attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of trail to consider in detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The Court at that stage is not to see whether there is sufficient ground for conviction or whether the trial is sure to end in the conviction of the accused and the only thing to be seen is whether there is a strong suspicion which leads the Court to think that there are grounds for presuming that the accused had committed an offence. However, the Judge while considering the question of framing of charges has undoubtedly the power to sift and weigh the evidence for limited purpose of finding out whether or not a primafacie case against the accused has been made out. The Court cannot act as a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. The primafacie case would depend upon the fact of reach case and it is difficult to lay down a rule of universal application. However, if two views are equally possible and the Judge is satisfied that the evidence produced before him give rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge Sayed Sajid Ali vs. State (through CBI) (Crl. Revision No. 05/2016) Page No. 18 of 30 the accused...."
(32) Further, in the case of Vishwa Vibhuti Vs. CBI, decided on 06.07.2012, the Hon'ble High Court of Delhi, while relying upon the case of Hem Chand, observed as under : "........ The issue before the Apex Court was whether any documents which the accused may rely in support of his defense could be looked into at the stage of framing of charge or not. It was held that at the stage of framing of charge, the Court will not weigh the evidence as the stage for appreciating the evidence for the purpose of arriving at a conclusion is where the prosecution was able to bring home the charge against the accused or not, would arise only if all the evidence is brought on record at the trial. Though on the basis of admitted documents the accused may be in a position to show that the charge could not have been framed against him but the accused could not rely upon some documents upon which the prosecution does not rely. The Court at the stage of framing charge exercises a limited jurisdiction and what is to be seen is whether prima facie case has been made out or not. What is also to be considered is whether a case of probable conviction for commission of an offence has been made out on the basis WP (Crl.) 870 of 2010 Page 43 of 54 of the materials found during investigation and at that stage the Court should not delve deep into the matter for the purpose of appreciation of evidence as it would ordinarily not consider as to whether the accused would be able to establish his defense, if any. In Debendra Nath Padhi the Apex Court had held that if any document is necessary or desirable for the defense of the accused, the question of invoking Section 91 at the initial stage of framing Sayed Sajid Ali vs. State (through CBI) (Crl. Revision No. 05/2016) Page No. 19 of 30 of charge would not arise since the defense of the accused is not relevant at that stage. As far as the accused is concerned, his entitlement to seek order under Section 91 would ordinarily not come till the stage of defense. It was further held that under Section 227 Cr.P.C. what is necessary and relevant is only the record produced in terms of Section 173 of the Code and the accused cannot at that stage invoke Section 91 to seek production of any document to show his innocence......."
(33) Applying the above settled principles of law to the facts of present case, at the very Outset I may observe that in so far as the present revisionist S. S. Ali is concerned, it is not disputed that he was the Investigating Officer of case bearing RC No. 6 (S) / 2010, SCU I/CBI/SC1/New Delhi registered in SC1 Branch on 24.04.2010 under Section 120B read with 420/465/467/468/471 IPC against the accused Krishna Murari Bangar coaccused (A2) in the present case. (34) Secondly it is alleged that during investigation of the said case, the revisionist / accused S. S. Ali, Dy. S.P., CBI who was the IO of RC No. 6 (S) / 2010, SCUI/CBI/SC1/New Delhi, in connivance with the A2 Krishna Murari Bangar, hatched a criminal conspiracy to save A2 from legal punishment pursuant to which he visited the house of A2 in Indore on 25.05.2010, 28.06.2010 and 29.06.2010 on the pretext of examining and collecting specimen handwriting of the family members, whereas the same were not required for the purpose of investigation. The material on record prima facie shows that the revisionist / IO visited Bhopal and Sagar for purposes of investigations Sayed Sajid Ali vs. State (through CBI) (Crl. Revision No. 05/2016) Page No. 20 of 30 but in pursuance of a conspiracy, A2 Krishan Murari Bangar also got his tour programme approved on 29.06.2010 for the tour to Bohla and Sagar and both of them reached Bhopal on 30.06.2010 and on the same day they proceeded for Sagar by bus and checked in at Hotel Devyog, Sagar at about 8:20 PM and stayed together in Room No. 108 of the hotel from 30.06.2010 to 02.07.2010 (D22). The evidence on record also prima facie shows that during this visit the revisionist / A1 recorded statements of certain witnesses whose presence was secured by the A2 who remained present during their examination which statements according to the prosecution are false and misleading (statement of PW37). Thereafter, both the accused checked out from the hotel together at about 3:30 PM on 2.7.2010 and reached Bhopal and checked in Hotel Rajhans, Bhopal at about 9:30 PM and stayed in Room No. 106 and 107 for a night and checked out at 6:00 AM on 3.7.2010.
(35) Thirdly the material collected by the investigating agency also shows that during investigation the revisionist examined the officials of Collectorate / Tribal Welfare Department, Sagar and Bhopal most of whom did not identify the signatures / handwritings of the issuing authorities on the Caste Certificates of Krishna Murari Bangar (A2), whereas, the revisionist (A1) deliberately and in order to favour, recorded false and misleading statements of witnesses that they had identified the signatures of the issuing authorities on the caste certificates (PW 9 & 10).
(36) Fourthly it is not disputed that the revisionist S. S. Ali had Sayed Sajid Ali vs. State (through CBI) (Crl. Revision No. 05/2016) Page No. 21 of 30 submitted the Final Report1 (FR1) in respect of the RC No. 6 (S)/2010 on 25.8.2010 (D14) concluding that the allegations that "K. M. Bangar (A2), Asstt. Director MSME, Indore has submitted false / forged ST certificates to get employment in the Government department could not be proved as he belongs to Halba Caste which comes under ST category in Madhya Pradesh while Bangar is the gotra of suspect". It is further a matter of record that Supervisory Officer, CBI of the case was not satisfied with the investigations conducted by the A1 / revisionist and he was directed to conduct further investigations to ascertain the real caste of the accused (A2) by collecting the land revenue, school / university records, birth and death records of the family of the accused (A2) besides reconstructing his family tree. The material on record shows that the revisionist S. S. Ali (A1) visited Sagar from 22.09.2010 to 25.09.2010 (D23) and as per the prosecution, in furtherance of aforesaid conspiracy with Krishna Murari Bangar (A2), the revisionist S. S. Ali (A1) in connivance with him also managed another Tour programe on 20.09.2010 (D19) to visit Sagar and other places from 21.09.2010 to 02.10.2010 and got it approved from the Director, MSME, Indore and he (A2) reached Sagar on 22.09.2010 and checked in Room No. 202 whereas the revision S. S. Ali (A1) also reached Hotel Devyog on the same day at about 01.40 PM and stayed in Room No. 202 already occupied by Krishna Murari Bangar (A2) (D23) where later both of them shifted to Room No. 107 and stayed there together up to 25.09.2010 till 2:00 PM and thereafter checked out at 02:00 PM and Sayed Sajid Ali vs. State (through CBI) (Crl. Revision No. 05/2016) Page No. 22 of 30 reached Bhopal by bus on the same day (D12 & D19). The material on record also prima facie shows that the revisionist S. S. Ali (A1) reached Delhi by night train and Krishna Murari Bangar (A2) reached Indore at about 1.10 AM on 26.09.2010 by Taxi but without visiting Jabalpur, Satna and Katni as per the approved tour programme (D12 & D19). It on record that during the stay at Sagar, Krishna Murari Bangur (A2) influenced and secured the presence of witnesses whereas S. S. Ali (A1) recorded statements of the witnesses who were under the influence of Krishna Murari Bangar (A2) which statements according to the prosecution were false and misleading (PWs16, 22 &
23) and after conducting further investigations, the revisionist S. S. Ali (A1) submitted supplementary final report (SFR1) on 06.10.201 (D14) and again recommended closure of the case against Krishna Murari Bangar (A2) on the ground that there is no record or information in the university about the caste of Krishna Murari Bangar (A2) and accused belonged to Halba caste which comes under the ST category upon which the Supervisory Officer again directed the revisionist / A1 to conduct further investigation on the points given earlier but he (A1) in his second final report (SFR1 dated 8.11.2010 again recommended closure of the case against accused Krishna Murari Bangar (A2) on the ground that there was no record or information in the university about the caste of Krishna Murari Bangar (A2) and accused belonged to Halba Caste which comes under the ST category.
(37) Fifthly as per the material on record Late Baldev Prasad Sayed Sajid Ali vs. State (through CBI) (Crl. Revision No. 05/2016) Page No. 23 of 30 S/o Sunke Lal Kosthi, the father of A2 Krishan Murari Bangar was residing at House No. 37/35, Purbio Tori, Sagar. Late Sunke Lal Koshti, grandfather of Krishna Murari Bangar (A2) had four sons namely Sarau Prasad, Jamuna Prasad, Baldev Prasad @ Balli and Sudama Prasad, who have since expired. Late Sarau Prasad had one son namely Ram Gopal Bangar. Late Jamuna Prasad had one son namely Gulab Chand Bangar who has four sons namely Babu Lal, Rajinder Kumar, Ram Avtar, Rakesh and Late Stya Narayan. Late Baldev Prasad @ Balli had four sons namely Late Har Govind, Krishana Murari Bangar, Kailash Prasad and Brij Mohan Bangar. Late Sudama Prasad had four sons namely Uttam Chand, Ram Narayan, Uma Shankar, Tej Ram and Dhani Ram. All the above relatives of accused Krishan Murari Bangar (A2) except Ram Narayan, Uma Shankar, Kailash Prasad, have been examined in this case and all of them stated that their caste was Koshti which comes under OBC category thereby prima facie showing that Krishan Murari Bangar (A
2) actually belongs to Koshti Caste which comes under OBC but he got the ST certificates issued by misrepresenting himself to be a member of Halba caste and used the said certificates for seeking Government Employment.
(38) Sixthly the Tax Assessment Registers of Municipal Corporation, Sagar for Purbiou Tori, prima facie shows the ancestral house of Krishan Murari Bangar (A2) i.e. House No. 70 (changed from time to time) still stands entered in the name of Baldev Prasad @ Balli S/o Sunke Lal since the year 195455 (D48 to D54). The said Sayed Sajid Ali vs. State (through CBI) (Crl. Revision No. 05/2016) Page No. 24 of 30 register shows that the caste of Late Baldev Prasad in the Municipal records of Sagar since 1954 to 1977 is shown as 'Koshti' and first time the word Halba was added / inserted beyond the name of Baldev s/o Sunke Koshti for the Tax Assessment records of 197778 to 198081 (D55 to D57) which shows that since 1954, the caste of father of Krishna Murari Bangar (A2) was Koshti and suddenly in 197778, it became Halba, when he (A2) had to take benefit of caste of seeking employment. Similarly, the word 'Halba' was inserted in two more registers for the period 198183 and 198388, when subsequent ST certificates were got issued by the accused (A2) under ST category. Further, in the Tax Assessment Registers for the period 1988 till 2008 (D58 to D61), again the caste is mentioned as 'Koshti' but in the current register of 200809 to 201213 (D62), the word 'Halba' has again been added.
(39) Seventhly the material on record also prima facie shows that the accused / revisionist visited the office of the Commissioner, Nagar Palika Nigam, Sagar on 24.09.2010 and handed over letter dated 14.09.2010 to the then Commissioner Sh. Surya Bhan Singh, asking irrelevant question i.e. whether H. No. 37 (Old) New No. 43/66, Purbiou Tori (Ganesh Ghat), Distt. Sagar is occupied by Sh. Brij Mohan Bangar S/o Late Sh. Baldev Prasad Halba ? Whether this house is jointly occupied / owned by Sh. Brij Mohan Bangar and his elder brother Sh. Krishna Murari Bangar ? What is their caste as per land records / Khasra Khatauni of the house and birth and death records of family or Vanshavali of family ? In fact the revisionist S. S. Sayed Sajid Ali vs. State (through CBI) (Crl. Revision No. 05/2016) Page No. 25 of 30 Ali had inspected the register and thereafter directed the Commissioner to prepare the reply on the above questions so designed by him despite the fact the the name of Krishan Murari Bangar and Brij Mohan Bangar was mentioned in th House Tax Assessment Register. The response of the Commissioner (D65) confirms that the manner in which the IO / revisionist S. S. Ali had twisted the questions and framed them in such a manner so as to secure necessary suitable response to assist Krishan Murari Bangar (A2).
(40) Eighthly, it is also prima facie evident from the material on record that the revisionist has visited the Commissioner office on 27.10.2010 and inspected all the Registers pertaining to Tax Assessment of Purbio Tori Ward and after inspection informed Sh. B. C. Sahu that the caste Halba Koshti is written against the name of Baldev S/o Suke in the three registers but the name is not reflected in the current register and the words Halba Koshti was added by Sh. Bhagwan Das Ahirwar, Tax Collected, Ward Purbio Tori, Sagar at the instance of S. S. Ali (A1) / the revisionist before this court. Thereafter, the revision S. S. Ali gave a requisition to provide attested copy of two registers for the period 197778 to 1980 81 and 200809 to 201112 which requisition was sent to copying branch where Sh. Ramendra Bachkaiya, Clerk had prepared 'Nakal' of the first register of 197778 and sent back the current register as there was cutting in the entry and Halba was written in the column of house number, which is not admissible. The prima facie allegations are that Sh. B. C. Sahu called Sh. Damodar Prasad Thakur in his chamber Sayed Sajid Ali vs. State (through CBI) (Crl. Revision No. 05/2016) Page No. 26 of 30 and asked to strike off the word Halba and rewrite after the word 'Koshti' but he (Sh. Damodar Prasad Thakur) objected to rectification of the same on which Sh. Sahu scolded him and pressurized him to rectify as this being a clerical mistake but at the same time IO i.e. Sh. S. S. Ali, revisionist told Sh. Sahu to make correction otherwise he would have to bring register with him to Delhi as he is going back on the same day, and thereafter as per the order of Mr. Sahu, Sh. Damodar Thakur struck off the word Halba written in the column meant for house number and wrote the same after the word 'Koshti' in the presence IO / S. S. Ali (A1). As per allegations, it was only to avoid chance revelation of the forced insertion of the word 'Halba' in the said registers, that the IO S. S. Ali (A1) deliberately obtained the handwritten copies of the entries, instead of obtaining either the original or certified copies thereof. (41) Lastly the investigation also confirms that the revisionist had also visited the Primary School, Higher Secondary School, Sagar University, to collect the records pertaining to Krishan Murari Bangar (A2) but the revisionist deliberately did not collect the record containing his caste and recorded the statements of the witnesses in distorted manner to favour the accused Krishan Murari Bangar. (42) This being the background, it is writ large that there is sufficient material against the revisionist S. S. Ali prima facie connecting him to the allegations involved. The question before this court is not whether the Halba community falls under OBC or ST Sayed Sajid Ali vs. State (through CBI) (Crl. Revision No. 05/2016) Page No. 27 of 30 category but "Whether Krishan Murari Bangar (A2) was belonging to a particular community which is a Scheduled Tribe". As discussed herein above, prima facie the investigations conducted by the revisionist S. S. Ali (A1) appear to have been lead by the Krishan Murari Bangar (A2) and were not independent and fair. At this stage of framing of charge, it is not open for the Ld. Trial Court to assess, evaluate and weigh the prosecution evidence in a criminal case as it is done at the final stage. In case if two views are possible one which favours the prosecution has to be accepted at this stage. It is not open for this court to sift and weigh the evidence as if it is conducting a mini trial and charge can be framed on the basis of grave suspicion and the evidential value of the statement recorded during the course of investigations is required to be seen at the time of appropriate trial. The court is only required to consider whether prima facie there exists sufficient ground to proceed against the accused. A roving and fishing inquiry is impermissible. It is sufficient if the prosecution is able to show prima facie the commission of the offence and the involvement of the charged person. It is also immaterial whether the case is based on direct or circumstantial evidence and this court is only require to see if prima facie there is sufficient ground for proceeding against the accused. Further, in case if two views are possible, the view which favours the prosecution is required to be accepted at this stage. (43) I may observe that the question as to whether the Revisionist / Accused No. 1 S. S. Ali the then Dy. Superintendent of Police (CBI) was accepting the hospitality of Accused No. 2 Krishan Sayed Sajid Ali vs. State (through CBI) (Crl. Revision No. 05/2016) Page No. 28 of 30 Murari Bangar while investigating the allegations against Accused No. 2, cannot be finally adjudicated at this stage and only a prima facie view on the basis of material has to be framed, which has been done by the Ld. Trial Court. The material on record in fact prima facie reveals that the Accused No. 1 Syed Sajid Ali appears to have gone overboard on many occasions so much so that he even went to the extent of issuing directions to the officers of the Commissionerate in order to make insertions in their official record with regard to the Caste details of Krishan Murari Bangar (A2) and his family. This is not only criminal but also a sheer abuse and misuse of official position by the Investigating Officer and he has apparently done so to favour the Accused No. 2 or else there could have been no other reason why he would have gone to this extent. Also, there is no reason why the Revisionist should have ignored the directions of his seniors and not collected the school and educational record of Accused No. 2 in order to ascertain his real caste. The question whether the Accused No. 2 was Scheduled Tribe or not, can only arise after his True and Real Caste is ascertained and it is prima facie evident that the Revisionist / Accused No. 1 Syed Sajid Ali who was the Investigating Officer of the case, had apparently attempted to turn the course of investigation. I note that the closure of the earlier case was only on technical grounds and does not relate to the conduct of the Accused No. 1 and Accused No. 2 during the investigations of the said case and the issue relating to creation of false evidence and fabrication of records, which aspect is totally different.
Sayed Sajid Ali vs. State (through CBI) (Crl. Revision No. 05/2016) Page No. 29 of 30 (44) Hence, under the given circumstances, I find that there exists sufficient material on record to frame the charge against the revisionist and I find no illegality or irregularity in the impugned order of Ld. Trial Trial Court. The revision petition is hereby Dismissed. The Trial Court Record be sent back along with copy of this order.
(45) Revision file be consigned to Record Room.
Announced in the open Court (Dr. KAMINI LAU)
Dated: 07.11.2017 Spl. Judge (P.C. Act) CBI01
(Central) THC/Delhi.
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